The Ford Foundation: Shaping America’s laws by re-making her law schools
By Walter Olson, Foundation Watch, July 2013 (PDF here)
Summary: For over half a century, the Ford Foundation has quietly worked to turn the nation’s law schools into agents of Sixties-style “social change.” Other donors like Carnegie, Soros, and MacArthur have followed Ford’s path, and the result can be seen in landmark Supreme Court decisions, the plethora of politicized “legal clinics” on campus, and the courts’ growing willingness to defer to “international law.”
Among the other impressive things organized philanthropy can do, it sometimes manages to pull off a major Supreme Court decision. That is what seems to have happened in Roper v. Simmons (2005), in which a 5-4 majority of the Supreme Court declared the death penalty unconstitutional as applied to crimes committed before age 18. In a particularly noteworthy passage of the majority opinion, Justice Anthony Kennedy controversially suggested that in determining whether a law passes muster under the U.S. Constitution, it may be relevant to consult the law of foreign countries, as well as a diplomatic instrument not ratified by the United States Senate: Article 37 of the United Nations Convention on the Rights of the Child.
The decision itself, along with its subtext of deference toward foreign and international law, did not emerge from a void. It resulted from a campaign of legal and public advocacy built up over years, in which foundation grantmaking was a driving force. Among the major conduits of the effort was a juvenile justice project housed at Northwestern University School of Law in Chicago. Before and after Roper, the project remained almost unknown to the wider public, aside from the occasional bit of controversy stirred by the identity of the project’s director—Bernardine Dohrn, a former leader of the Weather Underground, known for its bombing of the U.S. Capitol as well as a string of other violent crimes.
Dohrn’s notoriety aside, it’s actually not unusual for the funding of a law school project to serve as a key strategic step in the campaign for a real-world courtroom breakthrough. Thus generous foundation support enabled the founding of something called the Harvard Civil Rights Project in 1996, with the aim of laying the groundwork for the defense of racial preferences in university admissions. In 2003, an ambivalent Supreme Court mostly upheld such preferences. (The Court is revisiting the issue in this year’s Fisher v. University of Texas.)
The phenomenon dates back to what has been called the rights revolution, in the Sixties and early Seventies, in which courts regularly agreed to create wholly new rights at the request of what were called public interest lawyers—themselves a newly fledged variety of lawyer conceived of as serving (in effect) as lobbyists in the courtroom for the poor and other traditionally underrepresented groups. Much of the legal campaign that brought about the rights revolution was managed from within the law schools, as professors coordinated strategy with outside litigators, legal services programs, funders, sympathetic journalists, and other players. Law schools directly housed many key legal action centers that supported landmark suits and provided assistance to others through the student-staffed legal clinics that—in another of the Ford Foundation’s most successful and durable initiatives—sprang up at more than a hundred law schools over this period.
As it became evident that dollars invested in legal academia could go a long way toward reshaping the law itself, other foundations have followed, setting a pattern that continues into our own Soros-and-MacArthur era: Many high-profile law-school centers, programs, and initiatives are funded and often originated by donors interested in influencing law beyond the campus gates. These initiatives sometimes succeed in fueling whole social movements outside the campus, like the slavery reparations movement; at other times they underlie specialized but far-reaching litigation campaigns known mostly to lawyers, such as the assertion of long-defunct land claims by Indian tribes.
Ford Launches the Clinical Revolution
The Ford Foundation pioneered high-stakes law school philanthropy and has remained a key donor for more than a half century. Over the years Ford has endowed many a blue-ribbon panel, countless graduate fellowships and faculty positions, and—probably its most successful initiative—the modern development of clinical legal education.
As early as the 1950s Ford began sinking large sums into the revamping of law school curricula, much of it aimed at re-orienting law toward the cause of “social change”—an ill-defined term that included but was not limited to the championing of the poor and racial minorities. Among its constants has been the goal (to quote an early Ford-sponsored panel) of “developing the social conscience of law students and professors.” Ford has also aggressively sought to introduce new topics to the law school curriculum, beginning with a largely failed Sixties effort to establish poverty law as a new subject, and later through generous patronage of women’s studies, race studies, and other identity-based programs of study (which it also supports extensively in other parts of the modern university). More recently it has turned major attention to promoting international human rights law.
Ford had long been the biggest and the most influential of the foundations. It had pioneered the phenomenon of staff-led emancipation from the donor intent of its founding family (a process confirmed and completed in 1977 when Henry Ford II threw in the towel and quit its board in frustration). It had also been a pioneer in plunging into politically controversial areas, especially after 1966 when McGeorge Bundy became its president and brought on board many other veterans of the Kennedy/Johnson administrations, such as Robert McNamara, Dean Rusk, and Chester Bowles. For a while, indeed, it got in trouble by too openly promoting outright politicking and election activity, pulling back only after serious rumblings from tax authorities.
Few sectors of society were bit harder by the Sixties bug than the philanthropy establishment, and Ford again led the way. When the period began, most foundations, in line with the wishes of their original benefactors, tended to pursue a “service” ethic of direct assistance to human needs: scholarships for deserving students, services to the disabled, home visits for the elderly, medical research, recreation for city kids, and so forth.
But now charitable administrators were urged to move in a new direction. Effective philanthropy (it was argued) required changing the unjust social conditions that permitted poverty, ill health, and deprivation to arise in the first place. That required politically aware giving to organizers and activists who could best challenge old institutions. The old programmatic service ethic of direct help to the needy was passé – “merely ameliorative,” in the telling phrase of one new-style grantmaker. The services it provided might be all very well in their way, but if so, they should be provided as a responsibility of government, and it would hasten the recognition of that fact if foundations stopped being so willing to step into the gap. In short, direct relief of need was out; financing adversarial politics and insurgent organizing was in.
From Politics to Litigation
Where Bundy was ahead of his time was in recognizing that traditional electoral politics—or even the rowdy street politics of marches and building occupations—was no longer where the real action was. That distinction fell to the courts, led by Chief Justice Earl Warren’s Supreme Court. Already, creative lawyering had been the catalyst for bold judicial action in such areas as racial desegregation, criminal procedure reform, and legislative redistricting. What if this new lawyering style were set loose at America’s other intractable social problems: air pollution, poverty, unequal schooling, the problems of women, and so forth? Litigation—lots and lots of it—was needed.
What seemed to work best was a strategic and anticipatory approach, in which lawyers identified key cases offering an opportunity to make new law, lined up sympathetic clients with which to bring such actions, and worked closely with the media to build public support. It was all given a new and flattering title: public interest law.
A few years between 1966 and 1969 saw the launch of most of the institutions that have dominated the field of public interest law ever since: in civil rights law, the Lawyers Committee for Civil Rights Under Law, Mexican American Legal Defense and Education Fund (MALDEF), Puerto Rican Legal Defense Fund, and Native American Rights Fund; in women’s rights law, the ACLU Women’s Rights Project and National Women’s Law Center; in environmental law, the Environmental Defense Fund, Sierra Club Legal Defense Fund (later EarthJustice), and Natural Resources Defense Council; and comparable groups in many other areas, including organizations devoted to welfare rights and school finance equalization. Ford also funded major expansions of existing groups such as the American Civil Liberties Union and NAACP Legal Defense Fund. Bundy and his Ford colleagues made themselves truly the Johnny Appleseeds of litigation liberalism, staking start-up money and sometimes longer-term funding for all the groups named above.
For a while, things were touch and go, because it was far from clear the new kind of law would be granted the highly preferential tax status its proponents sought. They wanted their efforts to be accepted under the rubric of “public charity,” just like the United Way. But looking for opportunities to sue people did not in itself sound like a particularly charitable endeavor, and if you accepted the idea that the ultimate goal was to change laws, you made it sound like lobbying, which isn’t entitled to charitable tax treatment either. Some in the Nixon administration strongly opposed the bid for charitable status, but following a big Establishment blitz, including a statement by former presidents of the American Bar Association, the Treasury Department caved and ruled in the movement’s favor in 1970.
Other foundations followed Ford’s lead. Thus the Carnegie Endowment threw itself into the support of courtroom efforts to require public schools to instruct immigrant children in their first language, while the Edna McConnell Clark Foundation, based on the Avon fortune, did much to assist lawsuits that forced mass deinstitutionalization of mental patients. Soon grantmaking that aimed to change the world through lawsuits came to seem normal and even uncontroversial. In his 1975 president’s report, Bundy conceded that many still viewed the promotion of large-scale litigation as “an inappropriate choosing up of sides” for a philanthropic institution. But his colleagues had rejected that view: “we decided that there was only one right side to the question of equal opportunity.” Only one right side? That certainly simplified things.
Some of the new legal strike forces were based on campus, among them Columbia’s Center for Social Welfare Policy and Law, which took the lead in an elaborate, Ford-directed welfare rights campaign. Particularly influential were so-called backup centers, such as Berkeley’s National Housing Law Project, which lent strategic and appellate help to lawyers around the country seeking to liberalize particular areas of the law; later some of these groups obtained large infusions of tax money by way of the federal legal services program.
A distinctive strength of the new legal network was its success at getting favorable notice for its cases in the press. Public interest litigation tends to be complicated, and reporters depend on relatively few sources who are in a position to analyze its detail. To assist in this process, foundation grants enabled the formation of many law school projects and centers that might not themselves sue but that served as allies, researchers, and public explainers for the groups filing the suits. In New Jersey, after the freestanding Education Law Center (founded by the Rutgers law prof Paul Tractenberg with Ford funding) launched a series of school finance suits that convulsed the state’s politics for the next 30 years, reporters covering the suits often turned for commentary and analysis to the Institute on Education Law and Policy (also founded by Tractenberg with Ford funding but housed, unlike the Education Law Center, within the law school itself). The New York Times so routinely accorded favorable ink to cases filed by Ford grantees that you might have assumed some underground system of pneumatic tubes linked the paper’s headquarters on West 43rd Street with the foundation’s on East 43rd. Even now, “spot the Ford grantee” can be a productive game to play when reading some reformist investigative report in the Times datelined Waziristan or the American Deep South.
Poverty Law for the Non-Poor Ford’s adopted innovation, the law school clinic, was very much part of the overall plan. In 1968 it launched a group called the Council on Legal Education for Professional Responsibility (CLEPR) to promote the clinical idea. It then began pouring large sums into the establishment of new clinical programs around the country (it expected individual law schools to take over their support after a while).
Many lesser changes were necessary to make the new idea happen. Local court rules, for example, needed to be changed to allow law students to make court appearances—a privilege ordinarily reserved for licensed attorneys. To train leadership for the new programs, Ford furnished Harvard with money to launch a graduate center that was soon turning out five clinical professors a year.
Backers of the new clinical movement embraced a series of objectives seen as interconnected.
First and more obvious was the pedagogical: clinics would take students beyond books and lectures to impart skills by entrusting them with actual legal work. A second goal was to marshal a pool of resources with which to provide pro bono (free) legal representation to the poor, a traditional responsibility of the established bar that had often been ill-served. Third, and growing out of the work for poorer clients, the new clinics would become involved in test cases and other law reform litigation. Finally, the very experience of being thrown in with poor and oppressed clients would raise law students’ consciousness and accelerate the schools’ engagement with movements for “social change.”
Whatever else might be said of these four objectives, it soon became clear they were at cross purposes to varying extents. What worked well pedagogically did not always serve the needs of law reform, the best ways of addressing the pro bono gap did not always raise students’ political consciousness in the hoped-for ways, and so forth.
To begin with, most poor people who want legal services are not trying to change society. Many want a divorce, or an alteration to child custody or visitation. Or they have a small collections matter, traffic dispute, or misdemeanor case that does not call for any particular change in the law. For persons who see themselves as pioneers of radical social change, it can all seem discouragingly “ameliorative.” Proposals were soon heard for guidelines authorizing clinics to turn away many walk-in cases to allow more time for class actions, institutional reform suits, constitutional challenges, and other high-profile cases. The rationale was that in this way lawyers could “save thousands instead of a few.”
At the same time many of the contemplated law-reform and social-change campaigns would not readily fit into a scheme of representing poorer individuals. Advocates had the answer to that one: they were defending interests that otherwise might go un- or underrepresented. That covered the environmental cases where there was often no real client at all, or where persons harmed by noise, congestion, or loss of scenic views were by no means impoverished.
Just as a free clinic will attract too many walk-in clients to serve them all, so there is an endless surfeit of both people and causes going underrepresented, and one’s selection among these reflects one’s political preferences. Would the feminist-run family law clinic take the case of a father floundering under unsustainable child support obligations? Would the urban law clinic represent the much-robbed bodega owner getting the runaround from City Hall on permission to carry a firearm? Would the rural-poor law clinic represent the backwoods family in trouble for burning trash or hunting without a license? It might just depend on the clinic director’s politics.
In the same way, poor people’s legal interests often clash, and which you pick reflects your political assumptions. Law school clinics often protect unruly students from school discipline and stave off disruptive tenants’ eviction from public housing, even though fellow students and tenants in poor neighborhoods are among the chief losers. Clinics also work to overturn convictions of wrongdoers whose future victim base will consist mostly of persons of modest means.
One might extend such a list indefinitely through controversies over busing, bilingual education, and many other issues. If lawsuits prevent states from insisting on waiting periods for granting welfare to persons who arrive from elsewhere, will states be willing or able to maintain as high a level of benefits in the first place? If the law makes it harder for landlords to evict tenants for unpaid rent, will they start demanding higher security deposits? To Ford, there may have been “only one right side” to these questions, but others will wonder whether all lawyering for the poor really leaves the poor better off.
The early proposals to limit the volume of actual clients so as to free up time for law reform drew a caustic rebuttal from, of all people, William Pincus, the director of CLEPR and a Ford alumnus. “We are speaking,” Pincus wrote, “of moving away clients from legal aid so that lawyers may save “their time to reform the system.” In other words, the plan was to provide less service to actual poor people because to many lawyers, “law reform and the restructuring of the society” provided their psyches “a much more satisfying outlet.” It symbolized a wider phenomenon: “the common man as an individual tends to get lost. They’re for him as a cause, but they don’t want to cope with him in person,” except insofar as he can furnish “apparent endorsement of plans which have already been contrived by those who are leading a movement.” Pincus deserves due credit on the point: in part because of his efforts, law reform goals were not always permitted to override the goals of service and learning.
Leading with the Checkbook
In theory, law schools could resist being influenced by funder priorities. But their resistance was not notably strong.
From early days, universities have been known to trim and adjust their operations in search of philanthropic support, even altering their principles of theology as needed to preserve the financial health of the institution. And while most deans are skilled at fending off garden-variety negative donor influence—the stereotyped crotchety alumnus who disapproves of a controversial program—they are not necessarily immune to the positive blandishments afforded by funding availability. One reason some academic careers outpace others is that some candidates are highly “fundable”—that is, have the backing of key grantmakers outside the institution.
Consider, for example, how Bernardine Dohrn got ensconced in her enviable job at Northwestern despite her lack (as critics noted) of ordinary teaching and practice experience. One factor that can’t have hurt: her father-in law sat on the Northwestern board. But another was that her program reliably raked in major grants from the MacArthur Foundation and other grantmakers.
Observers say the grants were widely read as a vote of confidence in Dohrn personally, and might not have been assured had the program been assigned to someone else. Yet not every proposal can get past the university committee: some funders and causes are more ideologically acceptable than others. “They won’t take money just from anyone for anything,” says Daniel Polsby, dean at George Mason University and a critic of Dohrn, previously his colleague at Northwestern.
Some funders are also pushier than others, and Ford is perhaps the most famously pushy of them all. Even by the standards of legal academia, Ford’s left-tilting style of philanthropy is something special. For one thing, it frankly emphasizes movement-building in contrast to a spirit of inquiry.
Whatever their political leanings, most faculties pride themselves on a life of the mind that values research for its own sake and for its potential to reveal unexpected things about the world that may call on us to revise our thinking. Ford, on the other hand—as reflected in its policy document on legal philanthropy, Many Roads to Justice—hews to an official view of research as purely instrumental, providing ammunition for causes and crusades already settled on as desirable. “Research can be a powerful tool for social change,” it explains. The resultant findings can “support policy and law reform, provide the factual basis for litigation,” and, as it explains at another point, help grantees “galvanize public support for policy reform.” But it goes on to caution in all sternness that research “does not constitute a stand-alone strategy.” The mere elucidation of a social problem for purposes of understanding it more deeply, in other words, is no reason to open the foundation’s ample checkbook. Which makes a sort of sense, on the assumption that they don’t expect the findings of new research to change their own minds about anything.
The high hopes for public interest law formed in the Sixties have not really worked out as planned. Litigation aimed at social change turns out to be rife with unintended consequences. In areas like welfare, education, prison, and environmental law, it has often bogged down in what is called “paralysis by analysis.” Court decrees dragging on for decades drove up the cost of government, yet failed to produce the advertised revolutionary results. Public opinion reacted sharply against much of the handiwork of the new rights revolution, from school busing to prison overcrowding release orders to the deinstitutionalization of mental patients. As the courts entered the Rehnquist and Roberts era, judges increasingly declined to create new types of rights urged on them, such as rights to housing and health care. “Public interest” litigation hasn’t ceased, by any means; indeed, it remains a premier way of gaining and exercising power in battles over governance. But it has lost much of its former glamour.
As for the law school clinics, when it comes to ideologically charged litigation, they get enough done to appall many on the Right but not enough to satisfy many on the Left. Georgetown’s David Luban has concluded that while it “seems likely” that “the overwhelming majority of clinical teachers would identify themselves as political progressives,” most clinical work fails to rise to the level of “cause” lawyering at all. At some schools, especially in big cities, a majority of clinics have a recognizably leftist or identity-politics mission, but more typically a sort of equilibrium is reached in which there are one or two such entries in a school’s line-up, outnumbered by others with less politicized sounding descriptions.
Why the dashed hopes? Firstly, new ways were found in the outside world to finance law reform litigation (often at its targets’ expense, or that of taxpayers) as opposed to through free student labor. Legal services programs, for example, can provide clients with fully licensed attorneys with no worries about fitting cases into an academic calendar. Beyond that, the all-law-reform-all-the-time model has proven to have limited appeal to law students themselves.
Alarmed at signs of flagging enthusiasm, advocates have sought to stir a revival. In 1989 Ford established something called the Inter-University Consortium on Poverty Law, whose stated purposes include promoting “the mobilization of law schools for poverty law advocacy.” George Soros’s Open Society Institute staked impressive sums to enable the American Association of Law Schools to launch an Equal Justice Project, which staged 19 colloquia attracting more than 2,000 faculty and activists. Its final report posited hopefully that the “pendulum of activism among students” was overdue for a favorable swing. The Carnegie, Mott, and MacArthur foundations have supported work in an emergent movement that calls itself “Law and Organizing,” which proposes turning legal skills toward the pursuit of street-level activism.
The most politicized examples of the clinic genre are regularly held up as models for emulation. Consider CUNY Law’s “economic justice” program, founded to combat welfare reform efforts by successive mayors of New York City (of whose government CUNY is itself ironically a part).
The extent of the program’s politicization can be inferred from its rhetorical boilerplate (“We encourage the students to examine and struggle with the professional and social-justice implications of lawyering for the disempowered and lawyering within an unjust system.”). It has won prizes from both the Clinical Legal Education Association and the New York State Bar Association.
Then there are the official units increasingly set up within the law school for purposes of “advancing the cause of social justice” (to quote the self-description of the Social Justice Institute at the University of New Hampshire’s law school). Sometimes the units are given authority over the school’s clinics, as at Seton Hall whose clinics are now overseen by its Center for Social Justice. Santa Clara’s Center for Social Justice and Public Service offers a busy calendar of events including “at least two major lectures each year featuring Critical Race theorists.” Vanderbilt’s Social Justice Program includes as part of its mission to “ensure that Vanderbilt Law Students receive an education that instills a commitment to social justice.” It also
promotes a wide variety of educational and scholarly activities aimed at exploring the role of law in creating, perpetuating and eradicating hierarchies of power and privilege in our society. The program seeks to address inequalities based on race, ethnicity, gender, sexual orientation and social and economic status, as well as the responsibility of the legal profession to protect the interests of marginalized, subordinated, and underrepresented clients and causes.
Power to the “International Community”
Grantmaking has encouraged the shift of mood in law schools toward identity politics, and the movements that resulted—Critical Race Theory, legal feminism, and a half-dozen others. These movements have had an impact on law outside the walls, in areas like the slavery reparations campaign, in which support from law school activism played a key role. In one litigation campaign lasting more than 40 years, with strong Ford sponsorship, representatives of Indian tribes have filed land claims disputing the ownership of vast tracts of America, including the land beneath cities as large as Syracuse and Denver. The campaign started with a pioneering 1971 law review article.
Both the slavery-reparations and the Indian-land-claim movements implicitly challenged the legitimacy of America’s national sovereignty at some level. But the greater and more explicit such challenge was yet to come. In recent years the hottest new enthusiasm in legal academia has been the international human rights movement, a specialty advanced by dozens of schools through new centers, programs, and professorships. All sorts of old domestic controversies—not only in the treatment of minority and indigenous populations, but also in such far-flung areas as gender inequality, prison conditions, the environment, labor, housing, and welfare law—are being redefined as international human rights matters.
Projects at many leading law schools now promote the view that the United States is a systematic violator of domestic human rights and should submit to the corrective authority of such transnational bodies as the U.N. Committee for the Elimination of Racial Discrimination and the new International Criminal Court. Just as public interest law confers great power on the litigation groups that file the suits and determine their agenda, so the fashionable new world of international human rights law confers much power on complaint-filing groups. It also places great weight on the claimed consensus of something called the “international community.”
Canny organizers saw early on the importance of setting up their friends and co-thinkers as part of this charmed circle, which may be why the Ford and Soros philanthropic networks lavishly funded both nonprofit human rights groups and law school projects.
For some time, various attempts had been afoot to obtain international human rights review of domestic controversies arising in the United States. The AFL-CIO has repeatedly gone to the U.N.’s International Labor Organization (ILO), contending that Congress is flouting ILO requirements by declining to liberalize the 1947 Taft-Hartley Act to compel wider employer recognition of labor unions. Environmentalists asked UNESCO to intervene in disputes over land use and visitor restrictions in and around Yellowstone National Park and other sensitive sites.
Ford and Soros philanthropy helped fit these scattershot efforts into something more of a sustained strategy. Ford played a central role in the 2002 establishment of the U.S. Human Rights Fund, a group intended to coordinate funding for such a push. Subsequent grants enabled the human rights project at Columbia Law School to launch “Bring Human Rights Home,” a campaign aimed at generating more international community scrutiny of and pressure against U.S. domestic policies. “Grantees use two strategic approaches,” noted Ford in its Many Roads to Justice report. “They argue for the application of international laws in domestic courts and they take cases to international tribunals when domestic options have proved unsuccessful.” The title of a 2006 symposium in the NYU Review of Law and Social Change summed up the strategy: “Realizing Domestic Social Justice Through International Human Rights.”
The movement has taken off. Hundreds of controversies arising from U.S. law and policymaking have been taken to international bodies. Advocates routinely accuse federal, state, and local governments in the United States of international human rights violations for not guaranteeing felons a right to vote after they finish their sentences; for immigration policies that turn away too many asylum seekers; for excluding persons with criminal records from public housing; for lack of comprehensive civilian review of police misconduct; for failure to print ballots in minority languages that have few exclusive speakers; and many, many more. Along with other big players, like Human Rights Watch, law school projects like Columbia’s and NYU’s are among regular complaint-filers.
For advocates, this campaign offers a way to push for a long list of goals that they have been unable to obtain through the conventional democratic process. Unfortunately, as a source of legislative authority, the “international community” has even less democratic legitimacy than the federal judiciary. Although the unelected federal judiciary has sometimes legislated new rights, at least the U.S. electorate gets to vote for the president who appoints it.
A big test of grantmakers’ success will come with the Supreme Court’s latest decision—pending as we go to press—on racial preferences in higher education. Ford was heavily involved before, during, and after the last such decision in 2003, which kept these preferences alive. But even if the Court declines to go along this time, Ford and its philanthropic confrères will continue—through their extraordinarily strong position in the law schools—to set much of the agenda for legal change for years to come.
Walter Olson is a senior fellow at the Cato Institute in Washington, D.C., founder of the blog Overlawyered.com, and author, among other works, of Schools for Misrule: Legal Academia and an Overlawyered America, from which this article is adapted.